Thursday, June 21, 2012

BPH's FAD "civilly" SUED IN FEDERAL COURT (Johnson v Shaffer)

The FAD (Forensic Assessment Division) unit of the Board of Parole Hearings (BPH) have been applying unlawful procedures to consider  LIFER suitability for parole on an on-going basis. In late April 2012 Attorney Wattley filed a Federal civil rights action ( ) against FAD. The Sixth Cause of Action notes the BPH refuses to record and transcribe psychological evaluation interviews: Our office was in the forefront, since the 2008 Shaputis decision to repeatedly call for recordings of the Psychological evaluation and/or to have Counsel present at the Psychological evaluation.

Attorney Letarte has been respectfully Denied by BPH many requests to be present or to record the Psychological evaluation of her clients. Attorney Letarte,  currently has a Writ (WHC) in the SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN BERNARDINO alleging among other causes that Petitioner (Lifer inmate) is Entitled to Have Counsel Present at His BPH Psychological Evaluation Pursuant to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. The Court requested the AG to file an informal response by 5/24/12.
STAY TUNE on the State side!

LSA (Life Support Alliance) is another entity who has repeatedly and publicly, in the monthly Executive Meeting of the BPH, called for such recordings and put this call on the public record. In another Cause of Action the Federal civil lawsuit suit notes the tests used in FAD evaluations are not standardized and are arbitrary, an argument LSA made forcefully in public BPH considerations of approving Title15 Section 2240. (For more LSA information see )

In Psychological Rebuttal letters that our law office offer, (  with the help of Independent Forensic Psychologists we have found many Rookie errors (among others) made by FAD Psychologists. For example: 
                  1.   Lack of transparency, i.e. reaches conclusions without showing how s/he got there;

2.   Inconsistent with his/her own data, e.g. FAD’s claim that Lifer has ASPD (Anti-Social Personality Disorder) in spite of a long history of pro-social, adaptive behavior;

3.   Manufacturing the ASPD diagnosis out of thin air;

4.   Numerous ethics violations;

5.   Use of “clinical judgment” to reach his/her opinions;

6.   Lack of quantification of the data s/he uses (e.g. insight, remorse).
 In an effort to level the playing field against evidence derived by applying unlawful psychological evaluation Sam Johnson, a lifer at San Quentin filed the civil rights action in the federal district court for the Eastern District of California. Under the Fourteenth Amendment and State constitution the litigation seeks “declaratory and injunctive relief under constitutional, statutory and regulatory law"  against officials of the California Department of Corrections and Rehabilitation (CDCR) and its Board of Parole Hearings (BPH).

Named as defendants are BPH Executive officer Jennifer Shaffer, Secretary of Corrections Matthew Cate, Governor Edmund G. Brown, Jr. BPH’s Chief Psychologist and FAD head Dr. Cliff Kusaj, Dr. Richard Hayward (the FAD psych who wrote Johnson’s evaluation), and the BPH Commissioner and Deputy Commissioner who denied Johnson parole based on the FAD evaluation.
In support of the court action,  Johnson v Shaffer, Wattley continues to seek input from lifers who have experienced some of the egregious activities noted in the suit through a series of questions included below:

1. Expert opinions stating that the PCL-R, HCR-20 or LS/CMI are not valid predictors of future violence among a population like California’s Lifers.
2. Challenging FAD evaluations based on either one substantial or three administrative errors, or both.
3. Requests to have psychological interviews tape recorded.
4. Requests to have FAD psychologist present at parole hearings.
5. Unexplained changes in risk assessment from one evaluation to the next from “low” to either “moderate” or “high.”
6. Attempts to interview or speak with FAD psychologist after the report is written but before the hearing.
7. BPH either overlooking substantial errors when the rest of the evaluation puts the prisoner in a negative light, but emphasizing errors when the rest of the evaluation puts the prisoner in a positive light. This includes the BPH finding the report to be inconclusive.
8. You requested the raw scores or underlying data that supported the FAD psychologist’s report.
9. You requested to call witnesses (either friendly or adverse) at your parole hearing.
10. The FAD psychologist gave you a diagnosis of Antisocial Personality Disorder even though you had little or no previous criminal or delinquent history.
. You were denied parole at an initial hearing when the risk assessment was “low” or “low/moderate”.
12. You have seen inconsistent labeling (low, medium/moderate or high) of numerical findings. For example, on one scale a 6% ranking would be labeled “medium,” while on another scale a 7% ranking would be labeled “low.”
13. BPH hearing panel conducted very little or no review of your written comments/objections to FAD psychological evaluations. For example, your written comments/objections did not make it into the Board Packet or was not presented to the hearing panel in a timely manner.
14. The BPH has defended its decision to use the PCL-R, HCR-20 or LS/CMI, including their reliance on an expert panel who reached a consensus on these tools.
15. The BPH violated California’s rulemaking statutes when developing the FAD regulations.
16. Any other FAD problem not listed here.

Of these particulars methods and manner of use spelled out in Wattley’s case,  A BIG KUDO to LSA who has been in the forefront of finding, collecting and using information relative to many of the above issues.

STAY TUNE on the Federal side!!!